Stewart v. Stewart, 47 N.C. App. 678

Stewart v. Stewart

47 N.C. App. 678 | N.C. Ct. App. | 1980

ARNOLD, Judge.

Plaintiff contends that the trial court erred in denying her Rule 60 motion, because she is entitled to relief from the court’s order of January 1979. She argues that the court could not by its January 1979 order vacate the custody and support portions of the 1977 order and thus leave the status of the children in fieri. As defendant points out, however, since the entry of the January 1979 order the status of the children has been settled by the court’s order in plaintiffs action filed in March 1979, and as a result the question plaintiff raises by her motion is now moot.

*680The situation here is much like that in Utilities Comm. v. Southern Bell Telephone Co., 289 N.C. 286, 221 S.E. 2d 322 (1976). There, the telephone company sought a rate increase, and received only about one-quarter of what it requested. While the company’s appeal was pending, it filed a new application and received the entire rate increase. Our Supreme Court took judicial notice of the later proceeding and dismissed the appeal from the original rate increase as moot.

In the present case, plaintiff seeks relief from the January 1979 order on the ground that the status of the children may not be left in fieri, but that the trial court in ruling on her motion properly took judicial notice of the action filed by plaintiff in March 1979. The order entered in that action in May 1979 settled the status of the children, and at the time plaintiff filed her Rule 60 motion in August 1979 the question of whether the trial court acted improperly by the entry of its January 1979 order was moot. Accordingly, the order denying plaintiffs motion for relief was proper.

Affirmed.

Judges Martin (Robert M.) and Hill concur.